What's Left of Roe

Since the ruling was handed down 40 years ago today, Roe v. Wade—which held that the constitutionally guaranteed right to privacy included a woman's right to choose to have an abortion—has been subject to an ongoing legal and political assault. This assault has not succeeded in getting the decision overturned. But it has caused the scope of the opinion to become narrower in ways that have disproportionately affected the rights of women of color, poor women, and women in isolated, rural areas. The re-election of Barack Obama might make Roe safe for the time being, but it is worth taking stock of how its meaning is being eroded and what the future battles would be.

The first major conservative victory in the struggle to narrow Roe v. Wade was the Hyde Amendment, which prohibited Medicaid funds from being used to provide abortion services. The Hyde Amendment split the pro-Roe v. Wade coalition on the Supreme Court, and was ultimately upheld in a 1980 5-4 decision. Three of the moderate Republicans who were part of the Roe majority (Potter Stewart, Lewis Powell, and Chief Justice Warren Burger) joined the two Roe dissenters (Justices White and Rehnquist) to uphold the amendment. Their opinion earned four separate defenses, including from Roe's author Harry Blackmun and from John Paul Stevens, whose impassioned dissent argued that "these Amendments constitute an unjustifiable, and indeed blatant, violation of the sovereign's duty to govern impartially."

Stevens and the other dissenters, I believe, had the better of the argument. But a majority of the Supreme Court had succeeded in defining a woman's reproductive freedom as a purely "negative" right—i.e., a right defined by the absence of state coercion. The state did not have any positive obligation to make abortion accessible for poor women, even if poor women were eligible for other medical services.

Powell and Burger did, at least, take the "negative" right seriously and defined it (along with the Hyde Amendment dissenters) in an appropriately robust manner. In the 1983 caseAkron v. Akron Center for Reproductive Health, the Court (in an opinion written by Powell) struck down various abortion regulations, including "informed consent," mandatory waiting periods, and parental-consent requirements. None of these regulations, the Court correctly reasoned, had any legitimate relationship to protecting the health of women, and were simply arbitrary obstacles that made abortions more difficult to obtain, especially for disadvantaged women. Akron, unfortunately, would remain the controlling precedent for less than a decade. As Republicans of a very different breed than Lewis Powell (let alone John Paul Stevens) began to dominate the federal courts, support for abortion rights waned. Because of the defeat of the late Robert Bork, Republicans did not succeed in getting Roe v. Wade overruled. But they did succeed in weakening it substantially.

As I have written before, the key case in contemporary abortion jurisprudence is the 1992 decision Planned Parenthood v. Casey. Casey was largely seen at the time as a victory for the pro-choice movement, and in the sense that given the composition of the Supreme Court meant that the only viable choices were Casey or overruling Roe entirely, it was. But although Casey re-affirmed Roe, it also weakened it substantially. Roe's "trimester framework" forbade most regulation of abortions obtained prior to fetal viability. Casey replaced the trimester framework with a new legal standard, holding that regulations of pre-viability abortions are constitutional as long as they do not constitute an "undue burden."

In theory, the "undue burden" standard could provide robust protection for reproductive freedom—Powell, after all, had used similar language in his Akron opinion. In practice, however, the the Court has found almost no state regulation short of an outright ban to constitute an "undue burden." With the exception of spousal-notification requirements and a (since overruled) opinion striking down a ban on intact dilation and extraction (late-term) abortions, the Court has not found any of the increasing number of abortion regulations to constitute an "undue burden." All-too-common regulations such as waiting periods, parental-notification laws, and requirements that women give their "informed consent" (often after listening to anti-scientific anti-abortion propaganda) have been upheld.

Going forward, then, the key battles will concern the application of the "undue burden" standard. Some states have begun to aggressively push the boundaries of Casey, passing new regulations such as requiring transvaginal ultrasounds and even banning some pre-viability abortions based on specious pseudo-science about "fetal pain." Perhaps most disturbing are the regulations passed by some states that would make it effectively impossible for abortion clinics to operate. The cumulative effect of these restrictions is to place women in a Catch-22. The regulations make it more difficult for women (especially those who don't live in major urban centers outside the Deep South) to obtain abortions in a timely manner, but also make abortions in the second and third trimesters more difficult to obtain.

That this Catch-22 constitute an "undue burden" strikes me as close to self-evident, but the Supreme Court hasn't seen it that way, and it's not clear that it will start. It's possible that some of these regulations (especially the prohibitions on pre-viability abortions, which flatly contradict Casey) will go too far for the current swing vote on abortion cases, Anthony Kennedy. But it's difficult to be optimistic. Many of these regulations might be based on bad science, but Kennedy has already quite clearly established his receptiveness to anti-choice pseudo-science.

In the meantime, the struggle to preserve what's left of Roe will have to take place in state legislatures, where new regulations should be resisted wherever possible. And since many of the initial rulings on new abortion regulations will be made by lower federal courts (and many not be immediately reviewed by a Supreme Court that has shown little recent inclination to re-enter the abortion wars), President Obama should make it a priority to get as many judges who will take Roe seriously confirmed to the federal circuit courts as possible. Roe may not be in immediate danger of being overturned, but an enormous amount of damage to the reproductive freedom of women can be done while keeping Roe formally intact.